BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 107/2006 Filed on 30.03.2006

Dated : 30.04.2011

Complainant:

Dr. P.A. Dasthakir, T.C 52/254(1), Pathumuri Lane, Nemom, Thiruvananthapuram.

Opposite parties :

1. Reliance Info Comm. Represented to Biswas Ramankutty, Web World, Vazhuthacaud, Thiruvananthapuram.

    

2. Reliance Capital Ltd., represented to Sri. Venkitesh Prabhu Narayana Prabhu, Web World, Vazhuthacaud, Thiruvananthapuram.

    

3. Anil, Legal Section, Reliance Info Comm, Web World, Vazhuthacaud, Thiruvananthapuram.

(By adv. N. Padmini)

This O.P having been heard on 16.03.2011, the Forum on 30.04.2011 delivered the following:

ORDER

SMT. S.K. SREELA, MEMBER

The pleadings as in the complaint are as follows: The complainant is a Homoeo doctor working in the Department of Homoeopathy, Govt. of Kerala, as a Chief Medical Officer. On 10.02.2003 the complainant joined as a customer of RIM Dheerubhai Ambani Pioneer offer through one of RIMs franchise at Pallippuram in Thiruvananthapuram. The Reliance authorities collected 13 post dated cheques out of which one cheque bears Rs. 3,000/- and all other cheques in Rs. 1,800/- each. The complainant got a hand set L.G 2030 on 11.04.2003, but it failed in working because of the absence of net work of service. So this service deficiency was informed by the complainant on several occasions and no response received from the Reliance Authorities, suffering this deficiency complainant tried to return the hand set and informed about the unsatisfaction. Due to the absence of service, the complainant decided to discontinue the RIM Consumer. The officials of the R.I.M were unwilling to accept the L.G. Handset No. 2030 and also further demanded Rs. 3,000/-. The opposite parties collected charges on every regular months without giving proper service, but the complainant made his complaint about the deficiency to the company. On the basis of regular complaint the opposite parties disconnected complainant's service on 09.01.2004 without any information. Even at the time of service cut the respondent tried to collect the complainant's cheque showing as amount of Rs. 1,800/- respondent send to the complainant's bank SBT, Trivandrum main branch. At last fed up with immoral behaviour of respondent the complainant dishonoured the cheque. When trying to surrender the handset to respondent, they are not willing to accept the set and not ready to give back the remaining cheque leaves. When the complainant made the dishonoured cheque opposite party initiate criminal proceedings against the complainant by submitting cheques in the criminal court, on that way they robbed Rs. 5,000/- as final settlement with surrendering the handset. Opposite parties compelled the complainant in the police station, Museum, Trivandrum to sign an one sided MOU made by the Reliance, as a condition for giving the entire post dated cheque back to the complainant but they never gave back the amount collected from the complainant as the value of the handset. The MOU is partial, made on 26.07.2005 and unwillingly got complainant's signature in the MOU in the Museum police station, Trivandrum on 19.08.2005.

Opposite parties have filed their detailed version contending as follows: The complaint is not maintainable. The complaint is hopelessly barred by Limitation. That the complainant be directed to produce copy of certificate to prove that he is a practicing doctor as the averment in para 1 & 2 of the case not known to the opposite parties. Reliance had launched the commercial operation from May 1^st 2003. The hand set sold through out-let are manufactured by different companies for Reliance Infocomm. The Dhirubhai Ambani Pioneer offer-DAPO is the first scheme for Reliance Infocomm. For availing the benefits of the scheme, the customer has to opt the scheme by remitting Rs. 3,000/- as club membership fee which is non-refundable. As per the scheme for the 1^st 400 minutes the company will charge 40 ps. Less for calls made to other phone and during the said 400 minutes all calls made to other Reliance phones are free. SMS was provided free of charge. The complainant was required to pay the non-refundable club membership fee of Rs. 3,000/- and in addition to this the complainant had to issue in the name of the 2^nd opposite party 12 post dated cheques of Rs. 1,800/- each which will be encashed in a span of 3 months. The calculation of Rs. 1,800/- was Rs. 600/- x 3 months, i.e; Rs. 400/- towards monthly charges and Rs. 200/- as other plan charges. Initially a low pulse rate was given but due to the TRAI Regulations the opposite party was forced to withdraw the same. All the offers given by the opposite parties were used by the complainant. The allegations to the contrary are false and hence denied. The allegation that the cheque for Rs. 1,800/- was encashed without giving service is false, against facts and hence denied. These opposite parties started their operations in the month of February 2003 and commercial operation from 1^st May of 2003. The service was free from any type of hindrances except for technical snag if any which is beyond the control of this opposite party as the signal waves are transmitted through satellite. The complainant was a defaulter right from the beginning and his usage was also on the higher side. The monthly charges used to come to Rs. 300/- to Rs. 400/-. The complainant never abided by the agreed terms and conditions. The allegations of service deficiency etc. are false and hence denied. This complaint is filed only to wreak vengeance against the opposite party for having filed complaint under Sec. 138 of N.I. Act and which forced the complainant to pay the dues. The allegation that the opposite party collected charges without giving proper service is sheer untruth and hence denied. The disconnection of service was effected due to non-payment of dues. A clear memorandum of understanding was executed between the complainant and the opposite parties in the presence of the Inspector of the Museum Police Station and as such on the said memorandum of understanding this opposite party agreed for settlement at Rs. 5,000/-. This complaint is filed suppressing the said mutual understanding. The cheque No. 24588 dated 10.07.2004 drawn on State Bank of Travancore, Thiruvananthapuram issued to the 2^nd opposite party was dishonoured. Legal notice was sent on 15.09.2004 and complaint under Sec. 138 of N.I. Act was filed on 05.11.2004. The complainant contested the matter and evidence was also tendered by him and when he was sure that he would be punished for the offence, he settled the matter. The complainant has purposely not mentioned about this cheque anywhere in his complaint. There was no loss of time or reputation to the complainant but on the other hand because of the complainant these opposite parties were unnecessarily dragged into litigations. There is no deficiency in service on the part of these opposite parties. Hence prays for dismissal of the complaint with compensatory costs.

Complainant has filed affidavit and marked Exts. P1 to P7. Complainant has been examined as PW1. DW1 has been examined on behalf of opposite parties, but DW1 has not been cross examined by the complainant.

The points for consideration are:-

1. Whether the allegations levelled against the opposite parties are maintainable before this Forum?

2. Whether there is any deficiency in service on the part of the opposite parties?

3. Whether the complainant is entitled for any of the reliefs claimed?

Points (i) to (iii):- This complaint has been filed by one Dr. P.A. Dhasthakir who claims to be a homoeo doctor working in the Department of Homoepathy Govt of Kerala. Though the opposite party has taken out a strong contention in the version regarding the proof of the same, the complainant has not produced certificate to prove that he is a practising doctor as pleaded.

The opposite parties contend that the complaint is barred by limitation as the service was terminated and since the complainant ceased to be a customer from 09.01.2004, a complaint filed in March 2006 is hopelessly barred by limitation. As per the complaint, the complainant became the consumer of the opposite parties on 10.02.2003 and his service has been disconnected on 09.01.2004. But the complainant has produced Exts. P4 series and P5 series before the Forum to show that he had sent letters to the opposite parties regarding the alleged issued. Hence we find that the contention of the opposite parties regarding limitation is not sustainable.

The complainant pleads that at the time of taking the connection from the opposite parties, the opposite parties had collected 13 post dated cheques, one cheque for Rs. 3,000/- and 12 cheques for Rs. 1,800/- each. After encashing Rs. 3,000/- a handset was provided to the complainant and further on 14.06.2003 one cheque for Rs. 1,800/- was encashed without offering service. The allegation of the complainant is that, because of the absence of net work of service complainant decided to disconnect the service but the opposite parties did not accept the handset and further demanded Rs. 3,000/- to accept the same. Complainant has pleaded that on 13.04.2003 he had made a complaint regarding deficiency in service at opposite party's corporate office at Vazhutahcaud office and till December 2003 he has not been offered service. Complainant has detailed the account of the payments collected from the complainant without giving service which are as follows: Rs. 3,000/- on 15.02.2003 under cheque No. 24582, Rs. 1800/- on 14.06.2003 vide cheque No. 24583 and Rs. 5,000/- cash payment on 22.07.2005 as per receipt No. 007769239 OTC code 09704 as final settlement. That when the cheques got dishonoured the opposite parties initiated criminal proceedings against the complainant by submitting cheques in the criminal court. The complainant as PW1 has filed a complaint before DGP i.e; Ext. P7 and accordingly the Museum CI had called him and that as per the same MOU was signed. PW1 has further deposed that MOU was signed after getting all the old cheques and that the MOU was signed after withdrawal of the case. Complainant has further deposed that it was he who had taken initiative to settle the matter. At this juncture the important document which requires consideration is Ext. D1 MOU which has been admitted by the complainant. As per Ext. D1, the complainant and the opposite parties have agreed that “On realization of the above said amount, the company agreed to withdraw the whole criminal complaint and in return the subscriber had agreed that he will not raise any claim either civil or criminal nature towards the company for the said MDN (CAF)”. Though the complainant has alleged that he was forced to sign on MOU, he has not taken up the matter to the higher authorities regarding the said alleged coercion. In the above circumstance, when as per Ext. D1, the complainant's grievance has been settled and since the complainant has agreed not to raise any claim towards the company either civil or criminal, we find that the complainant is estopped from filing this complaint before this Forum raising these allegations in the complaint.

From the foregoing discussions, we find that the complainant has miserably failed to establish his complaint and the same is without any merits. Complainant had submitted during final hearing that an amount of Rs. 250/- ordered as cost on 03.12.2009 has not been paid to him. The complainant is legally entitled for the said amount and so the opposite parties are directed to pay the said amount of Rs. 250/- to the complainant.

Besides the above discussions, the settled legal position pertaining to landline telephones and mobiles are to be considered. As per the law laid down by the Hon'ble Supreme Court in the case titled General Manager, Telecom Vs. M. Krishnan & another reported in 2009 CTJ 1062 (SC) (CP), any dispute between a phone subscriber and the telegraph authority can be resolved only by taking recourse of arbitration proceedings. Accordingly, the Consumer Forums have no jurisdiction to entertain any complaint irrespective of whether it concerns any landline telephone or a mobile/cellular phone.

In the result, the complaint is dismissed. No order as to costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of April 2011.

Sd/-

S.K. SREELA : MEMBER

Sd/-

G. SIVAPRASAD : PRESIDENT

Sd/-

BEENAKUMARI. A : MEMBER

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C.C. No. 107/2006

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Dr. P.A. Dasthakir

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of advertising

P2 - Copy of customer application form.

P3 - Savings pass book of SBT.

P4 - Copy of letter dated 16.02.2005 from complainant.

P5 - Copy of receipt dated 22.07.2005

P6 - Copy of letter dated 23.08.2005 from complainant.

P7 - Copy of letter to Director General of Police from the

complainant dated 06.08.2005.

III OPPOSITE PARTY'S WITNESS :

DW1 - Raja Raja Varma

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of the terms & conditions of opposite party dated 19.08.2005.

D2 - Copy of customer application form.

D3 - Copy of statement dated 01.01.2004.

D4 - Copy of statement dated 01.02.2004.

D5 - Copy of statement dated 01.03.2004

D6 - Copy of statement dated 01.04.2004.

D7 - Copy of statement dated 01.05.2004.

D8 - Copy of statement dated 01.06.2004.

D9 - Copy of statement dated 01.07.2004.

D10 - Copy of statement dated 01.08.2004.

D11 - Copy of statement dated 01.09.2004.

D12 - Copy of letter dated 23.08.2005 from the complainant.

D13 - Copy of letter dated 27.08.2005 addressed to the C.I of Police, Museum Police Station, Thiruvananthapuram.

Sd/-

PRESIDENT